Documente Academic
Documente Profesional
Documente Cultură
2d 6
11 Envtl. L. Rep. 20,091, 7 Media L. Rep. 1132
Richard P. Holme, Denver, Colo., with whom Davis, Graham & Stubbs,
Denver, Colo., Donald W. Perkins and Pierce, Atwood, Scribner, Allen,
Smith & Lancaster, Portland, Maine, were on brief, for plaintiffs,
appellants.
Cabanne Howard, Asst. Atty. Gen., Augusta, Maine, with whom Allan A.
Toubman, Asst. Atty. Gen., and Thomas G. Reeves, Counsel, Dept. of
Transp., Augusta, Maine, were on brief, for defendant, appellee.
Before ALDRICH and BOWNES, Circuit Judges, PETTINE, District
Judge.*
ALDRICH, Senior Circuit Judge.
Donnelly & Sons (billboards) and National Advertising Company (others), and
one individual who wishes to read them.3 Rejecting plaintiffs' claims that the
statute impermissibly overrode First Amendment rights, the district court, with
an extensive opinion, John Donnelly & Sons v. Mallar, 453 F.Supp. 1272,
dismissed the action, and plaintiffs appeal.
2
The legislature in its preamble asserted three justifications for the statute's
prohibitions: the protection of the state's landscape, a natural resource; the
enhancement of the tourist industry, and the public interest in highway safety.
To compensate for its restrictions on signs, the law provides for various
informational services. The presently salient aspects include the following.
To promote the public health, safety, economic development and other aspects
of the general welfare, it is in the public interest to provide tourists and
travelers with information and guidance concerning public accommodations,
facilities, commercial services and other businesses, and points of scenic,
cultural, historic, educational, recreational and religious interest. To provide
this information and guidance, it is the policy of the State and the purpose of
this chapter to:
4. Protection of scenic beauty. Enhance and protect the natural scenic beauty of
the State.
9 1903. Definitions
10
14. Sign. "Sign" means any structure, display, logo, device or representation
which is designed or used to advertise or call attention to any thing, person,
business, activity or place and is visible from any public way. It does not
include the flag, pennant or insignia of any nation, state or town. Whenever
dimensions of a sign are specified they shall include frames.
No person may erect or maintain signs visible to the traveling public from a
public way except as provided in this chapter.
13
14
"(A) direct and substantial limitation (on speech can) be sustained (if) it serves
a sufficiently strong, subordinating interest that the Village is entitled to
protect." Schaumburg v. Citizens for a Better Environment, 1980, 444 U.S.
620, 636, 100 S.Ct. 826, 836, 63 L.Ed.2d 73.
15
16 are justified without reference to the content of the regulated speech, ... they
"they
serve a significant governmental interest, and ... in so doing they leave open ample
alternative channels for communication of the information." Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976, 425 U.S. 748, 771, 96
S.Ct. 1817, 1830, 48 L.Ed.2d 346.
17
Like most one-liners, these are overly simplistic. In our case, they omit an
important consideration: not only must the restrictions serve a "sufficiently
strong" or "significant governmental interest," they must significantly serve
that interest. Hence we must evaluate not only the importance of the state's
interests, but also the extent to which the restrictions further those interests,
viz., their reasonable relationship to the achievement of the governmental
purpose." Bates v. Little Rock, 1960, 361 U.S. 516, 525, 80 S.Ct. 412, 417, 4
L.Ed.2d 480. Finally, in measuring the effect of the statute on free expression,
the freedoms of the First Amendment must be kept "in a preferred position."
Saia v. New York, 1948, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed.
1574, see Schneider v. State, 1939, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84
L.Ed. 155. In other words, the regulation must be no more restrictive than
reasonably necessary to serve the governmental interest. Brown v. Glines,
1980, 444 U.S. 348, 355, 100 S.Ct. 594, 600, 62 L.Ed.2d 540.
18
In sum, when First Amendment freedoms are on one side of the scale, the
balance must be struck by the courts, not by the legislators.
19 legislature appropriately inquires into and may declare the reasons impelling
"A
legislative action but the judicial function commands analysis of whether the
specific conduct charged falls within the reach of the statute and if so whether the
21
We are satisfied that the law, generally, is not directed to content. Billboards
are banned not because of the messages they convey, but because the medium
itself is objectionable. Metromedia, Inc. v. San Diego, 1980, 26 Cal.3d 848, 610
P.2d 407, 418, 164 Cal.Rptr. 510, prob. juris. noted, --- U.S. ----, 101 S.Ct. 265,
66 L.Ed.2d 127, 1980. Plaintiffs point to the fact that some of the exceptions to
the statute's prohibitions do depend on the message conveyed,4 and accordingly
argue that the statute is content-oriented. The argument proves too much. Each
of the exceptions reflects "an appropriate governmental interest." Police
Department of Chicago v. Mosley, 1972, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289,
33 L.Ed.2d 212; see Carey v. Brown, 1980, 447 U.S. 455, 100 S.Ct. 2286, 65
L.Ed.2d 263. See also Gay Students Organization v. Bonner, 1 Cir., 1974, 509
F.2d 652, 660-62 and n.6; People Acting Through Community Effort v.
Doorley, 1 Cir., 1972, 468 F.2d 1143, 1145; Karst, Equality as a Central
Principle in the First Amendment, 43 U.Chi.L.Rev. 20 (1975). Some for signs
of governmental and quasi-governmental bodies, and for traffic and bus signs
and the like are justified by sheer public necessity. Others e. g., for signs
showing the place and time of meetings, services and events of religious, civic
and philanthropic and other public organizations, and, of course, for voter
information for elections, primaries and referenda reflect the important
governmental interest in dissemination of information of special public
concern. These fall in the category of ideological speech5 even though they
may involve raising money to carry out the sponsoring group's primary
functions, see Schaumburg v. Citizens, ante, 444 U.S. at 628-33, 100 S.Ct. at
831-834; Murdock v. Pennsylvania, 1943, 319 U.S. 105, 110-12, 63 S.Ct. 870,
873-74, 87 L.Ed. 1292; Jamison v. Texas, 1943, 318 U.S. 413, 416-17, 63 S.Ct.
669, 671-672, 87 L.Ed. 869, which is still accorded fuller rights under the First
Amendment than commercial speech. Central Hudson Gas & Elec. Corp. v.
Public Service Comm'n of New York, ante, 100 S.Ct. at 2349; Consolidated
Edison Co. of New York v. Public Service Comm'n of New York, 1980, 447
U.S. 530, 538, 100 S.Ct. 2326, 2333 n. 5, 65 L.Ed.2d 319. This being said, it
would ill behoove the courts to deny the legislature the power to make the same
distinction. "Even within the area of protected speech, a difference in content
may require a different governmental response." Young v. American Mini
Theatres, Inc., 1976, 427 U.S. 50, 66, 96 S.Ct. 2440, 2450, 49 L.Ed.2d 310. In
sum, we do not find that these exceptions change the statute from a time, place
and manner restriction to one impermissibly based on content.
22
23
The state's asserted justifications, as we have said, are three. With respect to
highway safety, it correctly points out that many courts have found this a
sufficient, or at least an important reason for banning billboards. Some consider
only whether highway safety is a permissible basis for an exercise of the police
power so as to avoid the requirement of compensation for a taking. E. g., E. B.
Elliott Advertising Co. v. Metropolitan Dade County, 5 Cir., 1970, 425 F.2d
1141, 1151-52, cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35;
Ghaster Properties, Inc. v. Preston, 1964, 176 Ohio St. 425, 200 N.E.2d 328,
335-37; General Outdoor Advertising Co. v. Department of Public Works,
1935, 289 Mass. 149, 180-84, 193 N.E. 799, 813-15, appeal dismissed, 297
U.S. 725, 56 S.Ct. 495, 80 L.Ed. 385. Others approve a legislative finding that
the promotion of highway safety is sufficient to outweigh the burden upon
speech. E. g., State v. Lotze, ante, 593 P.2d at 813-14; Metromedia, Inc. v. San
Diego, ante, 610 P.2d at 416-20. But see State v. Pile, 1979, Okla., 603 P.2d
337, pet'n for cert. filed sub nom. Oklahoma v. Pile, No. 79-1617 (2/11/80), 48
U.S.L.W. 3699 (opinion by a divided court that there must be a "clear and
present danger" to justify "dubious intrusions" on liberties.) Our difficulty is
that these courts, as the state here, apparently consider the issue to be simply
whether billboards can rationally be said to affect highway safety, reasoning
that highway safety is a proper police power matter as to which the state
interest is strong, and since billboards could affect highway safety, the
legislative determination is to be respected. This approach disregards the
question of the substantiality of the connection between the challenged measure
and the state interests asserted to support it.
24
25
The fact that the statute may retain some dangerous signs and leave some that
are not is not determinative, but does diminish the overall importance, from the
standpoint of safety, of the restrictions effected. Concededly the purpose of all
signs is to attract attention, and it must be that they generally do so or plaintiffs
could not operate. Moore v. Ward, Ky., 1964, 377 S.W.2d 881, 886.
Nevertheless, it does not follow that the prohibited signs pose a significant
threat to highway safety; the record before us strongly suggests the contrary.
We hold on the present record that highway safety is not a sufficient ground,
standing alone, to support so broad a statute, and we have doubts whether it is
even a strong contributing factor.7
27
The far better justifications for the statute are the preservation of the state's
natural beauty for all its inhabitants, and the consequent enhancement of one of
its great economic resources, the tourist industry. Here, as distinguished from
traffic safety, plaintiffs are inescapably faced with numbers the more signs, the
worse the appearance. While a substantial number of billboards might well be
left at selected locations without endangering highway safety, any appreciable
number will injure the landscape. An aesthetic justification also fares better
than highway safety from the standpoint of judicial notice. While we may feel
unqualified on this record to declare the extent of the detrimental effect of
billboards as a class upon highway safety, with respect to aesthetics their effect
is obvious. One cannot review the billboard exhibits to plaintiffs' affidavits
without a resurgence of unpleasant memories, nor can we doubt that the
removal of billboards and large signs as provided for in the act would
substantially benefit the state's attractive landscape.
28
29 concept of the public welfare is broad and inclusive. The values it represents
"The
are spiritual as well as physical, aesthetic as well as monetary. It is within the power
of the legislature to determine that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as well as carefully patrolled."
(Citation omitted).
30
The cases are almost uniform that there is a strong governmental interest in
preserving the beauties of the landscape. E. g., Berman v. Parker, ante, 348
U.S. at 33, 75 S.Ct. at 102; Metromedia, ante, 592 P.2d at 735-36; Suffolk
Outdoor Advertising Co. v. Hulse, 1977, 43 N.Y.2d 483, 402 N.Y.S.2d 368,
373 N.E.2d 263, appeal dismissed, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101;
John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 1975, 369 Mass.
206, 216-24, 339 N.E.2d 709, 717-20; Markham Advertising Co. v. State, 1968,
73 Wash. 405, 439 P.2d 248, 259-60, appeal dismissed, 393 U.S. 316, 89 S.Ct.
553, 21 L.Ed.2d 512; Cromwell v. Ferrier, 1967, 19 N.Y.2d 263, 225 N.E.2d
749; Ghaster Properties, ante, 200 N.E.2d at 336-37; General Outdoor
Advertising, ante, 289 Mass. at 184-89, 193 N.E. at 815-17.
31
32
Concededly, not all members of the tourist industry are pleased by the statute.
A small number have furnished support to the plaintiffs by way of affidavits.
One is the president of the Maine Mid-Coast Route One Association, who
wants no interference with signs on Route One, a principal highway. The others
represent tourist attractions located off principal highways, primarily in the
Boothbay area, a number of miles from Route One, who, again, want signs on
the principal highways. With respect to establishments such as these which
cannot be so well served by on-premise signs, we consider them candidates for
section 1911(3), which liberalizes the restrictions on Official Business
Directional Signs in cases of "unusual hardship due to conditions of
topography, access or other physical characteristics." They will be further
assisted if the legislature liberalizes the permissible content of official business
directional signs. It will be time enough for off-route businesses to object if
they can show specific, unallayed hardship. We will not invalidate an entire
statute on the theory that they might not be heard, or on an unsupported
inference that the legislature has flouted the wishes of the tourist industry as a
whole.
33
As distinct from highway safety, then, the statute undoubtedly advances the
related state interests in aesthetics and tourism. Nor do we agree with plaintiffs
that the statute is not narrowly drawn to serve this purpose. It is true that all
signs are not equally disfiguring, and that some locations, less attractive to start
with, would suffer less than others. But even if one were to concede that some
particular locations might be but little hurt by the presence of signs, the
legislature could well feel that this overinclusiveness must be tolerated.
Assuming the state's substantial interest in an aesthetic landscape, the question
is whether there are any practical alternatives. One can easily imagine the
problems involved in attempting to zone the entire state. Few will be satisfied.
Urban dwellers, as well as country residents and travelers have an interest in the
quality of their surroundings. Berman v. Parker, ante; John Donnelly & Sons,
Inc. v. Outdoor Advertising Board, ante, 369 Mass. at 221-24, 339 N.E.2d at
719-20. Quite apart from the work, and expense, there would be substantial
difficulties in the determination and application of standards, with the assurance
that other plaintiffs, if not these, would be quick to sue. Moreover, to designate
one area as, so to speak, second class, might not only inspire complaints, but
would tend to impede improvement. On the other hand, as against general
zoning, a commission that would decide on a piece-by-piece basis might well
experience even greater difficulties.8 In short, we feel the statute is as narrowly
drawn as is practically and legally possible.
34
Nor are we moved by the suggestion that it diminishes the state's aesthetic
position to allow on-premise signs while imposing greater restrictions on
others. Apart from the necessity of making some commercial allowances, onpremise signs are the leastaesthetically offensive. The advertised structure,
whether flea market, gas station, or restaurant, has already violated the
landscape, and the act so limits permissible on-premise signs as to ensure that
any further damage will be negligible.9 From the point of view of aesthetics
there is no unfair discrimination in disfavoring off-premise as against onpremise signs. Newman Signs, Inc. v. Hjelle, N.D., 1978, 268 N.W.2d 741,
758-59, appeal dismissed, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449.
Similarly, the permitted signs on common carriers and motor vehicles, section
1913(1)(A), are of a more ephemeral nature; to outlaw them, moreover, would
present difficult questions regarding interstate commerce. Compare Southern
Pacific Co. v. Arizona, 1945, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915, with
South Carolina State Hwy. Dep't v. Barnwell Bros., 1938, 303 U.S. 177, 58
S.Ct. 510, 82 L.Ed. 734.
35
speech into two categories: general advertising for national brands, and specific
advertising by individual purveyors of goods and services. Concededly there is
some loss, as is always the case when the public interest conflicts with the
private. For general advertising, however, we see no problem. While naturally
plaintiffs, particularly the billboard plaintiff, tout the special qualities of
roadside promotion, the dollar statistics and judicial notice both point to ample
alternatives. For individual purveyors, besides permitted official business
directional signs, the statute allows a substantial amount of on-premise
notification. In addition, the statute provides for official tourist information
centers, section 1905, 10 and for directories and guidebooks and other services,
section 1907.11 They are by no means cut off.
36
We may agree, in spite of all this, that for some persons the statute's
curtailments may effect a noticeable diminution of opportunities. It is to be
observed, however, that not only is commercial speech not entitled to full First
Amendment protections, but deprivation of highway opportunities is not as
legally objectionable as some other curtailments. The use of land adjoining the
highway for commercial advertising is really use of the highway itself. New
York Thruway Authority v. Ashley Motor Court, Inc., 1961, 10 N.Y.2d 151,
176 N.E.2d 566, 569. Highways are "created for a quite different purpose by
the expenditure of public money ...." General Outdoor Advertising Co. v.
Department of Public Works, ante, 289 Mass. at 169, 193 N.E. at 808. As such
they are to be distinguished from parks or other facilities created for general
use, and weight should be given to the state's right to restrict the state-created
incidental benefits. Cf. Lehman v. Shaker Heights, 1974, 418 U.S. 298, 302-03,
94 S.Ct. 2714, 2716-17, 41 L.Ed.2d 770 (plurality opinion), 305-06 (Douglas,
J., concurring in judgment). In sum, we believe the general tenor of the statute,
so far as commercial advertising is concerned, is sufficiently supported by the
public good.
37
If plaintiffs lost use of the highways we cannot believe they could subsist on
the byways; indeed, they say as much. What plaintiffs, and such tourist
industries as support them, see ante, are really seeking is the principal
highways, as to which the distinction they attempt to draw is irrelevant.
Moreover, two of the cases they cite, Suffolk Outdoor Advertising Co. v.
Hulse, ante, and Veterans of Foreign Wars v. Steamboat Springs, 1978, 195
Colo. 44, 575 P.2d 835, appeal dismissed, 439 U.S. 809, 99 S.Ct. 66, 58
L.Ed.2d 101, each sustained an ordinance banning all billboards in an entire
town. The advertiser who seeks to reach that audience for example, a candidate
for City Council or a local clothing store would probably see little difference
between a total municipal and a statewide ban.
38
39
40
True, the Maine scheme makes accommodation for some signs of this type.
Signs showing the place and time of church services and meetings of civic
organizations; signs announcing events of public, civic, philanthropic or
religious organizations up to three weeks in advance; signs erected for an
election, primary or referendum, again within three weeks of the event; and
signs outside the right of way for historical or cultural organizations are all
exempted. These exceptions, however, do not go far enough. Initially, we doubt
that three weeks is enough time to publicize a campaign, particularly for the
little-known or unpopular candidate, or cause, with the greatest need for
exposure. Moreover, no exception is available for signs on important public
issues as to which no referendum is pending. Messages such as "Abortion is
Murder," "Save the Whales," "No Nukes," and "Contribute to your Community
Fund" are altogether banned. Not even the exception for on-premise signs is
available, since these must "advertise (a) business, facility or point of interest
conducted thereon ...." Section 1903(8). The law thus impacts more heavily on
ideological than on commercial speech a peculiar inversion of First
Amendment values.
42
The statute not only provides greater restrictions and fewer alternatives, the
other side of the coin for ideological than for commercial speech, but in one
respect ideological speech seems more dependent upon outdoor advertising to
begin with. The record shows that outdoor advertising, based upon cost per
exposure, is a far less expensive means of communication than radio,
television, newspaper or magazines. The district court's conclusion that the fact
that only 1.2% of advertising expenditures go to outdoor advertising
demonstrated the alternatives available for "commercial and noncommercial
advertising alike," 453 F.Supp. at 1280 & n.10, seems to us a non sequitur.13
Signs which can be cheaply erected particularly permit advancing "poorly
financed causes of little people," Martin v. Struthers, 1943, 319 U.S. 141, 146,
63 S.Ct. 862, 864, 87 L.Ed. 1313, a prime First Amendment objective. In short,
the statute's impositions are both legally and practically the most burdensome
on ideological speech, where they should be the least.
43
44
45
I concur in the judgment of the court that the Maine Traveler Information
Services Act unconstitutionally abridges First Amendment rights. The statute
presents several difficult questions, and I am in accord with the court's view on
many of them. I write separately, however, because I am compelled to disagree
with the implications of the court's treatment of commercial speech.
I. The Nature of the Statute
46
At the outset, I note the difficulty of placing the Maine statute into one of the
traditional First Amendment analytic pigeonholes. I am troubled by
denominating the statute an "incidental" restriction on expression that might be
justified by a "sufficiently important governmental interest in regulating the
nonspeech elements." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct.
1673, 1678, 20 L.Ed.2d 672 (1968). The state's asserted concerns highway
safety, promotion of tourism, and aesthetics certainly seem to be interests
"unrelated to the suppression of free expression," id. at 377, 88 S.Ct. at 1679,
and there is no evidence that they are pretexts concealing more sinister designs.
Moreover, it does appear that it is the physical existence per se of signs along
the public highways, rather than any particular message communicated thereon,
that offends those interests. Nevertheless, I do not believe that prohibiting the
erection of signs could be analogized to prohibiting the destruction of
draftcards, in order to fit the Maine statute into O'Brien's "incidental limitation"
framework. Unlike draftcards, which have a purpose and meaning independent
of any potential for speech by the holder, billboards are expression incarnate.
While, in theory, the legislature's goals would be frustrated even if all highway
signs were painted bright colors and conveyed no message whatsoever, we
know that, in fact, people do not put up billboards simply for the sake of
erecting objects along the roadways. As a practical matter, billboards do not
have a purpose and meaning apart from their potential for speech. Thus, I
cannot regard the statute as an "incidental" restriction on expression.
Suppression of speech may not have been the motive of the legislature, but
surely it was intentional, for it was a predictable and inevitable result of the
enactment of this statute.
47
48
49
In my view, these exemptions do not pass this exacting test. For example, I fail
to see any substantial state interest served by allowing a temporary sign that
advertises a Christmas bazaar at the local church while prohibiting a sign of
identical size, shape, color and duration that advertises a pre-Christmas sale at
the local department store. Nor do I see a substantial justification for permitting
a sign that states the meeting time of a civic organization while barring a
similar sign announcing the meeting time of an individual's sewing circle. The
court is apparently willing to accept such results as reflecting the "important
governmental interest in dissemination of information of special public
concern." With respect, I am not sure that the state can decide that the events
and operations of nonprofit organizations are of special concern to the public
while the events and operations of businesses and individuals are not. See
Carey v. Brown, 100 S.Ct. at 2292 quoting Police Department v. Mosley, 408
U.S. at 95-96, 92 S.Ct. at 2289-90. Moreover, the categories of temporary signs
now permitted are no less threatening to the goals of the statute than would be
other types, especially those put up by businesses. It might even be argued that
such categories are more likely to be aesthetically offensive because they will
probably be designed and erected by amateurs and may be less carefully
constructed and secured. Therefore, I would conclude that the content-based
distinctions here have little or no bearing on the interests the statute purportedly
furthers.1 Cf. Carey v. Brown, 100 S.Ct. at 2292.
50
Leaving aside the special problems posed by the three-week sign provision and
the exemption for civic and religious organizations, I have more fundamental
difficulties with regarding the statute as a time, place, or manner regulation. In
my opinion, there is merit in plaintiffs' argument that the near-total interdiction
of highway signs and billboards accomplished by this statute cannot be viewed
as merely a limitation on when, where, or how such speech can take place. It is
not an over-statement to say that the statute virtually obliterates the right to
speak by sign at any place visible from Maine's public roads. All off-premise
ideological speech by sign (except that covered by the two exemptions
discussed above) is outlawed unless it is the subject of an upcoming election or
referendum. Because permissible on-premise signs are limited to those that
"advertise (a) business, facility, or point of interest conducted thereon," an
individual cannot engage in ideological speech by sign even on his own
property if the sign is visible from a public roadway. Nor, apparently, can he
publicize such events as a "Garage Sale" or "Free Kittens" that do not constitute
a business conducted on the premises. Commercial entities are limited to six
off-premise signs (OBDS) whose size, content and location are regulated and
whose style must conform to mandated specifications. Content of on-premise
commercial signs is unrestricted, but they may not exceed ten in number. All
these restrictions apply not only to major commuter routes and interstate
highways, but to every public road in the state.
51
54
55
Maine has offered three justifications for the heavy burden it has imposed on
written roadside communication. As the majority opinion persuasively
demonstrates, the record before us simply does not support the asserted nexus
between highway safety and the prohibition of signs and billboards. Beyond
that, the state has expressed its concern for encouraging tourism and preserving
the aesthetic purity of its many scenic vistas. I am not so sure as my brethren
that the former of these interests is actually furthered by this statute. Without
doubt, Maine's natural beauties attract tourists; presumably, the more unspoiled
those beauties remain, the more tourists will sojourn in the state. However, the
value of vacationers to the state lies not in their mere physical presence within
its borders. Tourists are desired because they spend money. It stands to reason
that the more frequently and forcefully visitors are assured of the desirability of
the state's restaurants, motels, stores, and other attractions, the more likely they
are to leave their money behind them in Maine. A law that silences a significant
source of such assurances seems to me a peculiar way to foster tourism.
Undoubtedly, there is a point at which the cost of roadside advertising (i. e. the
number of tourists repelled by a billboard-filled highway) outweighs its
economic returns, but the record before us contains no more evidence on this
point than it does on highway safety. Therefore, I would conclude that the
statute cannot be justified as a means of preserving the economic resource of
tourism.
56
To my mind, then, the state's sweeping ban on billboards and highway signs
must stand or fall on the basis of its concern for aesthetic values. In attempting
to determine whether this interest is sufficient to warrant so great an intrusion
on First Amendment rights, we are again confronted by analytic difficulties. As
I have already noted, I am uncomfortable regarding the statute merely as an
incidental limitation on expression or as the typical time, place or manner
restriction. Rather, I would treat it as a deliberate suppression of speech, for
Maine has singled out only one manmade intrusion on nature a form of speech
as the target of its aesthetic concern. This creates a problem, however, in that
different standards reflecting different quantums of constitutional protection,
apply to restrictions on ideological and commercial speech. Thus, I follow the
majority's lead in bifurcating the statute for purposes of analysis, considering it
separately with respect to each type of speech. That we feel compelled to make
a content-based analysis of what purports to be (with limited exceptions) a
content-neutral statute further points up the difficult and unsettling nature of
Maine's actions here.
A. Impact on Ideological Speech
57
58
59
The Supreme Court's most recent pronouncement in this area teaches that a
59
The Supreme Court's most recent pronouncement in this area teaches that a
deliberate suppression of commercial speech is permissible only when a
substantial government interest is directly advanced by a statute no more
extensive than necessary to serve that interest. Central Hudson Gas & Electric
Corp. v. Public Service Commission, 447 U.S. 557, 564, 100 S.Ct. 2343, 2350,
65 L.Ed.2d 341 (1980) (standard for accurate commercial speech concerning
lawful activity.) I concur wholeheartedly with the court's eloquent testimony to
the importance of aesthetic concerns, and I find the state's desire to preserve the
beauties of its natural resources a substantial, even if not compelling, interest.
See Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102, 99 L.Ed. 27
(1954). I also agree that the statutory prohibition directly advances that interest.
Anyone who frequently travels our highways for business or pleasure would
probably agree that for every one billboard that is cleverly conceived,
artistically executed, or especially informative, there are a dozen that are
tasteless, insulting to the intelligence, or just plain ugly. It is hard to argue that
many roads would not be more attractive if uncluttered by the importunities of
billboard users.
60
61
Once this concession is made, however, the thorniest problem with a statute
banning commercial speech by sign is exposed. Central Hudson requires that
there be a tight nexus between the desired ends and the chosen means. Here is a
case where the degree of the statute's effectiveness is directly proportional to
the degree it impinges on commercial speech. The more grievous the burden on
First Amendment rights, the more perfect the "means"/"ends" fit, for if we
agree with the state that aesthetic concerns forbid permitting even unattractive
areas to be made uglier by billboards, then we must conclude that any roadside
sign is a threat to the statutory purpose. I believe this is a rare situation in First
Amendment cases. Usually, a far-reaching, speech-suppressive statute is drawn
more broadly than the state's concerns require. E. g., Carey v. Brown, 100 S.Ct.
at 2291-2296; First National Bank of Boston v. Bellotti, 435 U.S. 765, 794-95,
98 S.Ct. 1407, 1425-26, 55 L.Ed.2d 1407 (1978); Bates v. State Bar of Arizona,
433 U.S. 350, 383-84, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977); Carey v.
Population Services International, 431 U.S. 678, 700-02, 97 S.Ct. 2010, 202425, 52 L.Ed.2d 675 (1977). Such was the case in Central Hudson itself. See 100
S.Ct. at 2352. Thus, the Court there did not have to confront the question
whether, in a case where breadth corresponds to effectiveness, the state can be
required to settle for a less efficacious method in order to preserve some portion
of the speech that will otherwise be lost. In other words, when the means-ends
fit is too good, such that a gain in one value necessarily requires a loss of the
other, must the state accept a compromise?
62
The court would apparently answer this question "no," for the clear implication
of the court's opinion is that this statute, if limited to commercial speech, would
be constitutional. With deference to the erudite and thoughtful approach the
court takes, I simply do not agree that the survival of commercial speech by
sign can be left to the grace of Maine's legislature.
63
The costs imposed on the commercial speaker by this statute are great.
Billboards offer a high degree of exposure for a relatively low cost. Leaflets
and brochures may be comparably inexpensive, but because they cannot be
obtained without the driver's active assistance i. e., stopping, pulling off at an
information center, and selecting materials from an array they do not possess
the same potential for audience impact. Some travelers will choose to forego
the product rather than interrupt their drive and attempt to locate the necessary
information. 7 Others, who possess no conscious desire for the product but who
would have become interested had promotional materials come to their
attention, see Linmark Associates, Inc. v. Willingboro, 431 U.S. at 93, 97 S.Ct.
at 1618, will also be lost as customers.
64
Signs and billboards also have a unique capacity for timely appeals to traveling
consumers. The speaker advertising by radio or newspaper and, to a certain
extent, by leaflet or brochure must hope for a fortuitous coincidence of
information, desire, and opportunity to act. Billboards can be placed at
appropriate locations and intervals, presenting the speaker's message to the
audience at a point at which they can be persuaded to act upon it. By contrast,
travelers may hear the radio ad for "Mrs. Wilson's Homemade Ice Cream"
twenty miles after they passed the turnoff to her restaurant, or they may find
the brochure for Lakeside Country Inn the day after they have established
themselves in another hostel.
65
The state has tried to alleviate these burdens somewhat by the provision of
OBDS.8 However, the value of these signs for many commercial advertisers is,
to my mind, questionable. Homogeneity is the soul of the OBDS concept;
through regimentation of "size, color, lighting, manner of display and lettering,"
23 M.R.S.A. 1910, the state attempts to ensure that every merchant's sign
looks like the sign of every other merchant. Even with the expansion of
permissible content envisioned by the court, the opportunity for product
differentiation through creative or provocative advertising is sharply curtailed.
This may not matter a great deal to a Howard Johnson or a Burger King, whose
name alone conjures up an entire image of the product in the reader's mind. For
the small, local hotel or restaurant, however, such uniformity may leave them
virtually indistinguishable from their competitors. More important, government
imposed conformity treads on a cherished First Amendment value: the freedom
of the speaker to clothe his message in the style and form he deems most
satisfying and effective. Admittedly, this freedom is not absolute. However, its
loss is an element that must be reckoned as one of the costs exacted by this
statute.
66
Against these costs imposed on commercial speech, we must assess the benefit
that accrues to Maine's citizens. Even assuming that a total ban on billboards
will produce some aesthetic gain in all highway areas, the quantum of
improvement will obviously vary with the site involved. In undeveloped areas,
it may very well be that signs and billboards are the principal eyesores; here,
the benefit will be great, for their removal would return the landscape to its
pristine beauty. In industrial and commercial areas, however, signs and
billboards are but one of countless types of manmade intrusions on the natural
landscape. Without denying that some perceptible change for the better would
occur even here, I question whether the margin of improvement obtained in
these areas can really justify the state's decision to virtually eradicate
commercial speech by sign and billboard. Cf. Schneider v. New Jersey, 308
U.S. at 162-63, 60 S.Ct. at 151. If any one, consistent thread runs through First
Amendment jurisprudence, surely it must be the recognition that the
preservation of free expression is neither easy nor comfortable. It often requires
of us that we tolerate things we would rather not see and endure things we
would rather not hear. It requires that we accept a less-than-perfect world a
world that is not as quiet,9 as neat,10 as refined,11 or even, I believe, as scenic as
we might like.
67
In my view, therefore, Maine could not save this statute by limiting its
application to commercial speech. I do not believe that Central Hudson was
intended to preclude a balancing test when a statute imposes a near-total ban on
one medium of communication. Cf. Martin v. Struthers, 319 U.S. 141, 63 S.Ct.
862, 87 L.Ed. 1313 (1943); Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct.
146, 84 L.Ed. 155 (1939). Perhaps a different case would be presented were the
billboard ban limited to selected scenic highways or to areas not zoned for
industrial or commercial development.12 Undeniably, such an approach would
be a less thorough vindication of the state's aesthetic concerns; it would have
the virtue, however, of allowing those concerns to coexist with First
Amendment values without imposing a grievous burden on either interest.
68
One final point must be made. The court finds it easier to approve the state's
attempts at fullscale restriction of signs and billboards because "deprivation of
highway opportunities is not as legally objectionable as some other
curtailments." This seems to me somewhat of an inversion of the traditional
approach in First Amendment cases. "(S)treets, sidewalks, parks and other
similar public places are so historically associated with the exercise of First
Amendment rights that access to them for the purpose of exercising such rights
cannot constitutionally be denied broadly and absolutely." Carey v. Brown, 100
S.Ct. at 2289, quoting Amalgamated Food Employees Union v. Logan Valley
Plaza, 391 U.S. 308, 315, 88 S.Ct. 1601, 1606, 20 L.Ed.2d 603 (1968). See
Schneider v. New Jersey, 308 U.S. at 163, 60 S.Ct. at 151 ("the streets are
natural and proper places for the dissemination of information and opinion").
Although use of the streets by merchants extolling their wares and services may
not have the same place in the hierarchy of First Amendment values as does the
activity of social reformers and political dissidents,13 it is a practice equally
time-honored. Plaintiffs here do not demand that the state permit government
property to be appropriated to their use. Cf. Greer v. Spock, 424 U.S. 828, 96
S.Ct. 1211, 47 L.Ed.2d 505 (1976); Lehman v. Shaker Heights, 418 U.S. 298,
94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (plurality opinion). See Consolidated
Edison Co. v. Public Service Commission, 100 S.Ct. at 2333. They seek merely
the right to continue using privately owned land to communicate with highway
travelers. Certainly, public roadways are not created for the convenience of
advertisers. However, since we have rejected the suggestion that commercial
speakers obstruct or make perilous the intended use of the roadways, I do not
see that the state has any greater power to prevent speakers from reaping the
incidental benefits of public congregation on the highways than it has to restrict
their access to an audience gathered in any other public place.
69
For all these reasons, then, I join in the court's conclusion that the Maine
Traveler Information Services Act is unconstitutional, but I cannot subscribe to
the suggestion that an equally sweeping ban levelled against commercial speech
by sign would be acceptable.
Plaintiffs' brief reciprocates by naming the law the Maine Anti-Billboard Act.
Both sides are following tradition. The restrictions introduced by the Federal
Highway Beautification Act are announced as promoting "effective display of
outdoor advertising ...." 23 U.S.C. 131(d), as if the industry were receiving
needed help in running its business. For a cynical account of the nonenforcement of that act, see N. Price, On Billboards, Sierra, Sept.-Oct. 1980, 76
As a matter of record we note that the 1977 form, which was before the district
court, has since been amended, notably a new section 1913, Me.Laws 1979, c.
477, a fact plaintiffs' brief fails to recognize
The two companies together own almost 1000 of some 2500 billboards in the
state. The individual plaintiff claims that he wishes to see signs reminding him
to drive safely and slowly, and to avoid littering the highways. His affection for
manmade, over "nature's symbols and signs," may possibly be enhanced by the
fact that he is an employee of one of the corporate plaintiffs. As this is not a
class suit, the size of the class that could adequately be represented by the
individual plaintiff is not before us. In this opinion we refer usually to the
corporate plaintiffs who, in any event, have full standing to bring suit. See
Bigelow v. Virginia, 1975, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600
Types of signs. The following signs may be erected and maintained without
license or permit under this chapter as follows:
A. Signs of a duly constituted governmental body, ...;
B. Signs located on or in the rolling stock of common carriers, except those
which are determined by the commissioner to be circumventing the intent of
this chapter ....;
C. Signs on registered and inspected motor vehicles, except those which are
determined by the commissioner to be circumventing the intent of this chapter
....;
D. Signs, with an area of not more than 260 square inches, identifying stops or
1903. Definitions
Erection and maintenance. The commissioner, with the advice of the Travel
Information Advisory Council, shall designate locations for and erect official
business directional signs licensed under this chapter. The official business
directional signs shall be furnished and preserved by the applicant thereafter
and shall conform to regulations issued by the commissioner with the advice of
the Travel Information Advisory Council. Such regulations shall be consistent
with section 1910
1910. Types and arrangements of signs.
Subject to this chapter, the commissioner, with the advice of the Travel
Information Advisory Council, shall regulate the size, shape, color, lighting,
manner of display and lettering of official business directional signs. Such
regulations shall require uniformity among signs in accordance with the
following minimum requirements: No sign shall exceed in size 20 inches by 84
inches; uniform colors shall be specified for each type of service and facility;
lettering size shall be uniform; logos shall not exceed a uniform size; and posts
shall be a uniform size, shape and color. An appropriate symbol may be
specified for each type of eligible service or facility for inclusion upon official
business directional signs.
We are without the district court's appraisal of the record on this point. Having
found other grounds for upholding the statute, it did not reach this issue
Number, height, size, location, lighting, etc. of on-premise signs are carefully
regulated. See section 1914, subsection 6. Subject to comments elsewhere in
this opinion we generally accept this principle
10
services and other business for the traveling public, and points of scenic,
historic, cultural, recreational, educational and religious interest.
11
12
Plaintiffs' statement that "no existing legitimate business has ever been
governmentally excluded from an entire state in the absence of a specific
provision in the United States Constitution" is simply wrong on the facts.
Moreover, the billboard law contains a feature conspicuously absent in the antiliquor statute sustained in Mugler ; owners of billboards are compensated for
the removal of their structures or are allowed to amortize their cost over a
specified period. 23 M.R.S.A. 1915-16. The issue of the adequacy of the
compensation and amortization provisions is not before us
13
It is also fallaciously based. The record shows, for example, that 24% of
Donnelly's gross advertising space, devoted to ideological use, is largely
donated. This must substantially affect pro rata cost figures. We remark, in
passing, that we do not accept Donnelly's argument that since its ideological
contributions are dependent upon revenues of its commercial advertising, the
latter should be afforded the protection due the former
The statute provides other content-based exemptions not discussed here. Some
e. g., bus signs and traffic signs are undoubtedly sustainable. Others,
particularly an exemption of only three weeks for political signs, are
exceedingly suspect. Because I believe that the statute is invalid in its entirety, I
do not consider the particular problems that the various exemptions may
present
however, that that case does not in fact stand for so broad a proposition.
Writing for the Court, Justice Reed stated:
Unrestrained use throughout a municipality of all sound amplification devices
would be intolerable. Absolute prohibition within municipal limits of all sound
amplification, even though reasonably regulated in place, time and volume, is
undesirable and probably unconstitutional as an unreasonable interference with
normal activities.
336 U.S. at 81-82, 69 S.Ct. at 451.
Thus, it appears that the issue was the city's ability to regulate the manner of
amplification i. e., "loud and raucous" rather than the permissibility of a total
ban. Citations to Kovacs in later cases seem to support this reading. E. g.,
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976); Grayned v.
Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). Cf.
Saia v. New York, 334 U.S. 558, 561-62, 68 S.Ct. 1148, 1150, 92 L.Ed.2d 1574
(1948) (recognizing the importance of soundtrucks as a medium of expression).
3
My doubts are in part rooted in the recognition that the government need show
only a significant interest and the presence of ample alternative channels for
communication in order to justify a time, place or manner restriction. See
Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 534,
100 S.Ct. 2326, 2331, 65 L.Ed.2d 2326 (1980). It seems to me that this
standard does not afford sufficient protection for First Amendment values when
the loss of a commonly-accepted medium of expression is the price exacted by
the statute. Suppose the state were to ban newspapers, citing the environmental
damage attendant on their production and the waste disposal problems created
by their use. Would we be willing to sustain such a statute even if the state
could show that, in a society which increasingly prefers the electronic media to
reading, radio and television are adequate alternative methods of reaching most
people?
The method of expression may not have the same claim to First Amendment
protection as does the content. See Grayned v. Rockford, 408 U.S. at 115-16,
92 S.Ct. at 2302-2303; Cohen v. California, 403 U.S. 15, 18-19, 91 S.Ct. 1780,
1784-85, 29 L.Ed.2d 284 (1971). The law is not yet prepared to agree with
Marshall McLuhan that the medium is the message. However the speaker's
ability to choose the medium is, I believe, a distinct and important part of First
Amendment rights. (I am speaking here, of course, of methods of expression
that do not threaten the speaker or the person or property of another.) Whether
we view it from the speaker's perspective, and say that the choice of medium is
The court seems to assume that Maine could constitutionally enact a statute, of
the same comprehensiveness as the one before us, that explicitly limits its
applicability to commercial speech. Putting aside my reservations, set out infra,
as to the seriousness of the burden this would place on commercial expression, I
am not so sure as the court that the state could openly discriminate against
commercial speech in such a fashion. See e. g., Carey v. Brown, 100 S.Ct. at
2294 & n.13 (implying it an open question whether "certain state interests may
be so compelling that where no adequate alternatives exist a content-based
distinction if narrowly drawn would be a permissible way of furthering those
objectives"). But see Young v. American Mini Theatres, Inc., 427 U.S. 50, 6570, 96 S.Ct. 2440, 2449-50, 49 L.Ed.2d 310 (1976) (plurality opinion). For one
thing, to permit the uninhibited use of ideological billboards undercuts, to at
least some degree, the rationale for banning the erection of commercial signs. I
do not imply that this is necessarily a case where the state is damned if it
doesn't distinguish between commercial and ideological speech, and damned if
it does. Cf. Carey v. Brown, 100 S.Ct. at 2297 (Rehnquist, J., dissenting). I
merely wish to note that, for me, the question is not so easily resolved
In Times Square, for example, signs are an integral aspect of the locale. Indeed,
in some areas, a billboard or other sign may be the most interesting and
attractive feature of the landscape, a welcome distraction from urban blight or
industrial sprawl
Anyone who, feeling the urge for a snack or a cup of coffee on a long drive, has
scanned fast-food restaurant billboards seeking the magic phrase "Easy on-Easy
off" can probably attest to the phenomenon of desiring a product only if the
cost in time and inconvenience is not too great
This observation also raises questions about the right of traveling consumers to
receive the commercial information imparted by billboards and signs. While
this element has not been emphasized in argument and consideration of the
case, it must at least be acknowledged as present and of constitutional
significance. See Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. at 756-57, 96 S.Ct. at 1822, 48 L.Ed.2d 346.
Moreover, the Supreme Court has declined to limit consideration of this interest
to the situation where the information sought to be received by consumers
would not otherwise be reasonably available:
We are aware of no general principle that freedom of speech may be abridged
when the speaker's listeners could come by his message by some other means,
such as seeking him out and asking him what it is. Nor have we recognized any
such limitation on the independent right of the listener to receive the
information sought to be communicated.
Id. at 757 n.15, 96 S.Ct. at 1823 n.15.
It should be noted that OBDS do not possess the same potential for timely
appeals to travelers as the system of unregulated billboards they are intended to
replace. No commercial entity may have more than one OBDS per public
roadway leading to its establishment. The OBDS may only be located at
intersections where travelers must change directions to reach the advertised
product. Thus, potential consumers must be attracted through a single appeal,
and they will have little opportunity to consider or discuss the desirability of the
product before they must decide whether to divert from their route to seek it
See, e. g., Saia v. New York, 334 U.S. at 561-62, 68 S.Ct. at 1150
(loudspeakers)
10
E. g., Schneider v. New Jersey, 308 U.S. at 162, 60 S.Ct. at 151 ("the purpose
to keep the streets clean and of good appearance is insufficient to justify an
ordinance which prohibits a person rightfully on a public street from handing
literature to one willing to receive it")
11
12
13
But see The Supreme Court, 1979 Term, 94 Harv.L.Rev. 165-68 (1980)
(arguing that there is no principled basis for affording commercial speech a
lesser degree of constitutional protection)